There's Nothing Wrong with Prosecuting Tsarnaev as the American He Already Is

When the U.S. served Dzhokhar Tsarnaev with federal charges and announced that it would be trying him in civilian court — not as an enemy combatant — it was a moment when rationality beat emotion. What the brothers Tsarnaev allegedly did was really awful. But the Constitution still covers people who committed really awful crimes.

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The White House announced Monday that Dzhokhar Tsarnaev, served with federal charges in his hospital bed as his family and investigators continued looking for answers in the Boston Marathon bombings, will be tried in civilian court — instead of as an enemy combatant, as a handful of Republican politicians and conservatives demanded. "He will not be treated as an enemy combatant," press secretary Jay Carney said. "We will prosecute this terrorist through our civilian system of justice. Under U.S. law, United States citizens can not be tried in military commissions." The law was pretty clear: Tsarnaev is an American citizen who committed his crime on American soil. So far, there's no evidence tying him to al Qaeda. This is a moment when rationality beat emotion. What the Tsarnaevs allegedly did was really awful. But the Constitution still covers people who committed really awful crimes.

NPR highlighted the difference, perhaps unintentionally, in a Monday story on Morning Edition about Tsarnaev's status. On the side of trying him as a civilian, NPR interviewed several legal scholars. On the side of trying him as an enemy combatant, NPR aired clips of New York Rep. Peter King, and interviewed a man at a memorial to those who died at the marathon. "The son-of-a-bitch put a bomb right next to a little kid — how evil is that?" the man said. "Naw, we have to send a message." Sens. John McCain, Lindsey Graham, and Dan Coats all said — almost immediately following his capture Friday night — that Tsarnaev should be tried as an enemy combatant because Tsarnaev allegedly committed terrorism. But the government can't just name terrorists enemy combatants. As Mother Jones's Adam Serwer points out, the 2012 National Defense Authorization Act defines "enemy combatant" as "a person who was a part of or substantially supported Al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners." So far, we have not seen evidence the Tsarnaevs "substantially supported" al Qaeda.

The decision has gotten plenty of criticism. Anti-Islam blogger Pamela Geller writes, "I expect Obama would charge Nazi war crimes as a law enforcement matter as well." At The National Review, John Yoo says the decision shows "how its ideological commitments have forced it to rush to a judgment that may damage our national security." Yoo wrote the Bush administration's legal justification for torture and thus is an expert on such matters. But as the Brookings Institutions' Benjamin Wittes points out, this is not the result of a rush to judgment. Now-CIA chief John Brennan said in a 2011 speech to Harvard Law School, "when it comes to U.S. citizens involved in terrorist-related activity, whether they are captured overseas or at home, we will prosecute them in our criminal justice system."

Yoo argues that "Only far-left places like the New York Times editorial page" ignores legal precedent for the government designating citizens as enemy combatants. But Wittes notes that Yoo's former bosses, the Bush administration, only tried it twice, and "backed down both times."

Lindsey Graham criticized the decision in a press conference Monday. The Tsarnaevs were "inspired by radical Islamist and their ideology," Graham said. (Update, 5:15 p.m.: CNN reports that Tsarnaev was read his Miranda rights, which Graham had tweeted about after his capture Friday night. Update, 6:23 p.m.: Here's the transcript of the reading of rights.) Andrew Sullivan, too, has argued that we should be clear about what they were doing, writing, "Yes, Of Course It Was Jihad." But jihad or not, the Tsarnaevs don't appear to have been working with the terrorists we are legally at war with.

Giving Tsarnaev full constitutional rights isn't necessary, Graham said, because trying Tsarnaev would be easy! "There is ample evidence here on the criminal side, a first year law student could prosecute this case," he said. That's great news. If he were tried and convicted in a military court, Wittes notes, it might not actually be so easy. Civilians tried in military courts — Yaser Hamdi and Jose Padilla — got shorter prison sentences than they otherwise might have. So the decision to try Tsarnaev in civilian court might be not only a triumph for the Constitution, but for justice, too.

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